The offense is theft of property over the value of $50.00, and the punishment is two years in the penitentiary.
The indictment charges the theft of an automobile from J. L. Lindsey. The testimony shows that J. L. Lindsey was in partnership with one L. H. Krough and that this firm had possession and control of the automobile at the time it was stolen. Appellant seriously contends that the proof does not meet the allegations in the indictment, in that same charges that the property was stolen from Lindsey and the proof shows that it was in the custody of Lindsey and Krough. The rule is correctly stated by Mr. Branch as follows:
"When property is owned either by general or special owners in common, or jointly between two or more persons, the ownership may be alleged to be in all or either of them." Par. *Page 353 4, Sec. 2434, Branch's P. C. for many authorities supporting this rule.
We think the facts are clear to the effect that Lindsey and Krough had the actual care, custody and management of this property and under the authorities above cited, the state was well within its rights in alleging the ownership to be in Lindsey alone.
Various criticisms are levelled at the court's charge. We have examined same very carefully and are of the opinion that they are without merit. Appellant's testimony raised the issue that he believed that he had a right to use the car in quesion in furtherance of the business of Lindsey and Krough and did so without any intent to deprive the owner of the car. The court pertinently and fairly submitted this issue to the jury by telling them that if they found such to be appellant's intent from the evidence, or if they had a reasonable doubt thereof to acquit him.
Finding no error in the record, the judgment is in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
DECISION ORDERON MOTION FOR REHEARING.